[Congressional Record Volume 151, Number 165 (Monday, December 19, 2005)]
[Senate]
[Pages S14009-S14010]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            ABUSES OF POWER

  Mr. BYRD. Mr. President, perhaps the greatest oration ever delivered 
was the Oration on the Crown, delivered by Demosthenes in the year 330 
B.C. In that inimitable oration, it seems to me the question was posed: 
Who least serves the state? And the question was answered in that 
oration: He who does not speak his mind.
  In this day, we should remember that. And I shall attempt to honor 
that credo.
  Mr. President, Americans have been stunned at the recent news of the 
abuses of power by an overzealous President. It has become apparent 
that this administration has engaged in a consistent and unrelenting 
pattern of abuse against our country's law-abiding citizens and against 
our Constitution.
  We have been stunned to hear reports about the Pentagon gathering 
information and creating databases to spy on ordinary Americans whose 
only sin is to choose to exercise their first amendment right to 
peaceably assemble. Those Americans who choose to question the 
administration's flawed policy in Iraq are labeled by this 
administration as ``domestic terrorists.'' Shame!
  We now know that the FBI's use of national security letters on 
American citizens has increased exponentially, requiring tens of 
thousands of individuals to turn over personal information and records.
  These letters are issued without prior judicial review, and they 
provide no real means for an individual to challenge a permanent gag 
order. And through news reports, my fellow Americans, through news 
reports we have been shocked to learn of the CIA's practice of 
rendition and the so-called black sites, secret locations--hear that, 
secret locations--in foreign countries where abuse and interrogations 
have been exported to escape the reach of U.S. laws protecting against 
human rights abuses.
  We know that our Vice President, Dick Cheney, has asked for 
exemptions for the CIA from the language maintained in the McCain 
torture amendment banning cruel, inhumane, and degrading treatment. 
Thank God, Vice President Cheney's pleas have been rejected by this 
Congress.
  Now comes the stomach-churning revelation, through an Executive 
order, that President Bush has circumvented both the Congress and the 
court. Get that. Shame! Shame! He has usurped the third branch of 
Government, the branch charged with protecting the civil liberties of 
our people, by directing the National Security Agency to intercept and 
eavesdrop on the phone conversations and e-mails of American citizens 
without a warrant, which is a clear violation of the fourth amendment. 
Get that. He has stiff-armed the people's branch of Government, this 
branch, the people's branch. He has rationalized the use of domestic 
civilian surveillance with a flimsy claim that he has such authority 
because we are at war.
  The Executive order, which has been acknowledged by the President, is 
an end run around the Foreign Intelligence Surveillance Act, which 
makes it unlawful for any official to monitor the communications of an 
individual on American soil without the approval of the Foreign 
Intelligence Surveillance Court. What is the President thinking? What 
is the President thinking?
  Congress has provided for the very situations which the President is 
blatantly exploiting. The Foreign Intelligence Surveillance Court, 
housed in the Department of Justice, reviews requests for warrants for 
domestic surveillance. The court can review these requests 
expeditiously and in times of great emergency. In extreme cases, where 
time is of the essence and national security is at stake, surveillance 
can be conducted before the warrant is even applied for. This secret 
court was established so that sensitive surveillance could be conducted 
and information could be gathered without compromising the security of 
the investigation. The purpose of the FISA Court is to balance the 
Government's role in fighting the war on terror with the fourth 
amendment rights afforded to each and every American. Yet the American 
public is given vague and empty assurances by the President that amount 
to little more than ``trust me.''
  But we are a nation of laws and not of men. Where is the source of 
that authority the President claims? I defy the administration to show 
for the record where in the Foreign Intelligence Surveillance Act or 
where in the United States Constitution they are allowed to steal into 
the lives of innocent American citizens and spy.
  When asked recently what the source of that authority was, Secretary 
of State Condoleezza Rice had no answer. Secretary Rice seemed to 
insinuate that eavesdropping on Americans was acceptable because FISA 
was an outdated law and could not address the needs of the Government 
in combating the new war on terror. This is a patent falsehood. The USA 
PATRIOT Act expanded FISA significantly, equipping the Government with 
the tools it needed to fight terrorism. Further amendments to FISA were 
granted under the Intelligence Authorization Act of 2002 and the 
Homeland Security Act of 2002. In fact, in its final report, the 9/11 
Commission noted that the removal of the

[[Page S14010]]

pre-9/11 ``wall'' between intelligence officials and law enforcement 
was significant in that it ``opened up new opportunities for 
cooperative action.''
  But the President claims--hear me!--that these powers are within his 
role as Commander in Chief of the Army and Navy. Make no mistake, the 
powers granted to the Commander in Chief in this Constitution are 
specifically those as head of the Armed Forces.
  These warrantless searches are conducted not against a foreign power 
but against whom? Against unsuspecting and unknowing American 
citizens--like you, like you, like you, and like you! They are 
conducted against individuals living on American soil--not in Iraq, not 
in Afghanistan. There is nothing within the powers granted in the 
Commander in Chief clause that grants the President the ability to 
conduct clandestine surveillance of American civilians. Nothing. We 
must not allow such groundless, foolish claims to stand unchallenged.
  Now, the President claims boundless authority, an unlimited authority 
through the resolution that authorized war on those who perpetrated the 
September 11 attacks. But that resolution does not give the President 
unchecked power to spy on our own people. Read it. That resolution does 
not give the President unchecked power to spy on our own people. That 
resolution does not give the White House, this administration, the 
power to create covert prisons for secret prisoners. That resolution 
does not authorize the torture of prisoners to extract information from 
them. That resolution does not authorize running black hole secret 
prisons in foreign countries to get around U.S. law. That resolution 
does not give this President, or any President, the powers reserved 
only for kings and potentates.
  I continue to be shocked and astounded by the breadth with which this 
administration undermines the constitutional protections afforded to 
the people--the people--and the raw arrogance with which it rebukes the 
powers held by the legislative and judicial branches. The President has 
cast off Federal law enacted by Congress, often bearing his own 
signature, as mere formality. He has rebuffed the rule of law, and he 
has trivialized and trampled upon, trampled under foot the prohibitions 
against unreasonable searches and seizures guaranteed to Americans by 
the United States Constitution. This Constitution still lives. This 
Constitution was made for all time, for all administrations, for all 
Presidents, for all Senators.
  We are supposed to accept these dirty little secrets, and we are told 
that it is irresponsible to draw attention to President Bush's gross 
abuse of power and constitutional violations. But what is truly 
irresponsible is to neglect to uphold the rule of law.
  We listened to the President speak last night on the potential for 
democracy in Iraq. The President claims to want to instill in the Iraqi 
people a tangible freedom and working democracy, at the same time that 
he violates our own U.S. laws and checks and balances. President Bush 
called the recent Iraqi election ``a landmark day in the history of 
liberty.'' I daresay in this country we may have reached our own sort 
of landmark. Never have the promises and protections of liberty seemed 
so illusory, so fleeting. These renegade assaults on the Constitution 
and our system of laws strike at the very core of our values and foster 
a sense of mistrust and apprehension about the reach of Government.
  I am reminded of Thomas Payne's famous words: ``These are the times 
that try men's souls.''
  These astounding revelations about the bending, the twisting, the 
stretching, and contorting of the Constitution to justify a grasping, 
irresponsible administration under the banner of ``national security'' 
are an outrage. Congress can no longer sit on the sidelines. It is time 
to ask hard questions of the Attorney General. It is time to ask hard 
questions of the Secretary of State, of the Secretary of Defense, and 
of the Director of the CIA. The White House should not be allowed to 
exempt itself from answering the same questions simply because it might 
assert some kind of ``executive privilege'' in order to avoid further 
embarrassment.
  The practice of domestic spying on citizens should stop immediately. 
Oversight hearings need to be conducted. Judicial action may be in 
order. We need to finally be given answers to our questions: Where is 
the constitutional and statutory authority for spying on American 
citizens? Where? Where is that authority to be found?
  What is the content of these classified legal opinions asserting that 
there is a legality in this criminal usurpation of rights?
  Who is responsible for this dangerous and unconstitutional policy?
  How many American citizens' lives have been unknowingly affected?
  Mr. President, fellow Senators, let us in our day remember the words 
of Brutus to Cicero:

       Our ancestors scorned to bear even a gentle master!

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.

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